1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.  5102-5103   OF 2011 (Arising out of SLP(C ) No. 20693-20694 OF 2009)

Jagdish Prasad … Appellant

Versus

State of Rajasthan & Ors.      … Respondents

J U D G M  E N T

Swatanter  Kumar J.

Leave  granted.

These   appeals  are  directed  against  the  common  

judgment of the High Court of Judicature of Rajasthan,  

Jaipur Bench, at Jaipur dated 17th April, 2009 whereby the  

High Court in substance upheld the order of the Rajasthan  

Civil Services Appellate Tribunal, Jaipur (in short the  

‘Tribunal’)  dated  8th February,1999  and  issued  certain  

further directions to the respondents to undertake fresh

2 exercise for promotion to the post of District Transport  

Officer  (in  short  the  ‘DTO’)  from  the  post  of  Motor  

Vehicle Inspectors.  At the very outset we may refer to  

the relevant part of the Division Bench judgment dealing  

with the subject in question and issuing the directions  

which reads as under:

“There  cannot  be  any  dispute  and  as  has  been  decided  by  the  Apex  Court  that  clubbing  of  

vacancies could be made only for the purpose of  direct recruitment.  However, promotions have to  be made on the basis of year wise determination  of vacancies to the candidates eligible for the  particular  year  who  come  in  the  zone  of  consideration  for  the  particular  year  as  also  been referred above.  In the present case, it  appears  that  State  Government  had  given  a  complete go-bye to the provisions of the relevant  Rules and while clubbing the vacancies from 1983- 84 fill 1993-94, the promotions have been made  accordingly.  The clubbing of vacancies for more  than 10 years have not only created complications  so  far  as  reservation  of  the  posts  as  per  relevant  roster  are  concerned,  but  entire

3 procedure of zone of consideration for each hear  have  been  disturbed.   Merely  deletion  of  the  condition of  qualifying examination in the year  1992 will not justify the action of the State  government in clubbing all the vacancies of more  than  10  years  and  give  promotions  to  persons  making  a  new  zone  of  consideration  and  reservation also accordingly.  On the face of it  the whole action of the State Government cannot  be sustained in the eyes of law.  More so when it  is also not a case of one time promotion which  also require a special notification and amendment  in the Rules.

Having considered entire facts and circumstances,  since  after  due  consideration  proper  discretion  has  been  used  by  the  learned  Tribunal  as  also  learned Single Judge, we find no ground for any  further interference.  The appellant State may now  make a complete fresh exercise as per directions  of the Tribunal as early as possible preferably  within four months.  It is further made clear that  persons already promoted shall not be demoted till  the  exercise  is  made  and  fresh  orders  of  promotions on the basis of yearwise determination  of vacancies are passed.  In case any person is  not found suitable for the particular year and  have already been given benefit of promotion, in  case of reversion or change of year of promotion,

4 the salary already paid, may not be recovered,  however, pay fixation has to be made accordingly.  If any person has retired during the intervening  period, his retiral benefits already paid on the  basis of last pay drawn may also not be recovered  except for revision of pension if required.

With  the  above  observations  and  direction,  the  appeals are disposed of accordingly.”

     In order to examine the challenge to the impugned judgment  

in its proper perspective, it will be useful for us to refer to  

the  basic  facts  giving  rise  to  the  present  appeal.   The  

appellant  

belongs  

to  a  

Scheduled  

Caste  and  

was  

initially  

appointed  

as  a  

Motor  

Vehicle Sub-Inspector vide order dated 23rd August, 1980.  He was  

confirmed  in  this  post  on  3rd May,  1983  whereafter,  he  was  

promoted upon his satisfactory performance of his duties to the  

post  of  Motor  Vehicle  Sub  Inspector  through  Departmental  

Promotion Committee (in short the ‘DPC’) on the principle of  

seniority-cum-merit vide order dated 20th January, 1987.  He was  

thereafter regularized in the said post on 15th October, 1988.  

On 13th April, 1992, a notification was issued by the respondents

5 amending the Rajasthan Transport Service Rules, 1979 (in short  

the ‘1979 Rules’) (marked as annexure P-5 to the Petition). By  

this amendment, Schedule 1 and Schedule 2 of the 1979 Rules to  

the  existing  Rules  were  amended.   The  Notification  read  as  

under:

“In exercise of the powers conferred by the proviso  to Article 309 of the Constitution of India, the  Governor  of  Rajasthan  hereby  makes  the  following  amendments with immediate effect in the Rajasthan  Transport Service Rules, 1979m namely:

AMENDMENT

In  the said  rules:-

1. Amendment of Schedule-1:

1. the existing entries at item

2. occurring in column 6 against to S.No. 4 shall be deleted.

1.  The existing Schedule II shall be deleted.”

As  is  evident  from  the  above  Schedule,  earlier  the  

candidates were required to pass the qualifying examination for  

the  post  of  District  Transport  Officer.   However,  by  this

6 amendment, the said requirement was deleted under Schedule 1 and  

syllabus for the same was deleted from Schedule 2.  In other  

words,  promotion  would  be  possible  without  holding  the  said  

examination for the higher post.

On  27th May,  1994  a  seniority  list  of  Motor  Vehicle  

Inspectors was issued.  On the basis of this seniority list, a  

number of persons, including the appellant, were promoted to the  

post of District Transport Officer vide order dated 8th July,  

1994.  

One  Shri  

Pooran  

Singh,  

respondent  No.2  belonging  to  the  General  Category,  who  was  

holding the post of Motor Vehicle Inspector in the Transport  

Department, preferred an appeal before the Tribunal against the  

order dated 8th July, 1994.  According to him, he was senior to  

the  persons  who  were  promoted  by  that  order  and  this  was  a  

supercession, contrary to the 1979 Rules.  Therefore, it was to  

be declared as illegal and unjustifiable.  He also prayed for  

consequential reliefs.

7 Another contention raised before the Tribunal was that the State  

of Rajasthan violated Rules 10 & 24 of the 1979 Rules and hence,  

the exercise of the State was arbitrary and discriminatory.  The  

clubbing of the vacancies from the years 1983-84 to 1993-94 was  

for  the  total  21  vacancies,  which  was  improper  as  the  

respondents were obliged to consider the vacancies in each given  

year in terms of Rule 10.  According to the challenge raised  

before the Tribunal, out of the 17 promotees from the Motor  

Vehicle  

Inspector  

cadre,  10  

from  

general  

category  

were  

actually  

senior  to  

Pooran  

Singh  but  

the candidates at serial nos.12 to 17 belonging to the Scheduled  

Castes, were junior to him.  He was at serial No.23 of the  

seniority  list  and  as  such  was  entitled  to  promotion  in  

preference to those candidates.  The State filed a reply before  

the  Tribunal  and  stated  that  though  the  vacancies  had  been  

determined  year  wise  no  one  had  passed  the  qualifying  

examination and nobody had been found eligible for promotion

8 upto  1st April,  1994  as  per  Schedule  II  of  the  1979  Rules.  

Thereafter,  for  administrative  reasons  including  the  

representation made by Rajasthan Transport Inspector’s Union,  

the  qualifying  examination  was  done  away  with,  as  already  

referred, and appointment/promotion to the post of DTO was made  

simply by promotion.  21 vacancies became available and out of  

that 4 persons have already been promoted, leaving a balance of  

17  vacancies.   Out  of  these  17  vacancies,  5  vacancies  were  

reserved  

for  

Scheduled  

Castes,  3  

for  

Scheduled  

Tribes  

candidates  and  the  remaining  vacancies  were  clubbed  and  

promotions were made on the basis of seniority cum merit.  The  

detail of the yearwise vacancies are as follows:

Year     Vacancies

1983-84 2

1984-85 2

1985-86 1

1986-87 2

1987-88 2

9 1988-89 1

1989-90 1

1990-91 1

1991-92 2

1992-93 1

1993-94 2

It was further the case of the State that the vacancies have to  

be carried forward from year to year and in want of eligible  

candidates, vacancies could not be filled in accordance with  

rules.  

It  was  

further  

urged  by  

the  State  

that  the  

vacancies  

in  the  

post  of  

DTOs  

could  not  be  filled  for  want  of  eligible  candidates  and,  

therefore, the vacancies were carried forward for consideration  

to the subsequent years.  It is also averred in the petition  

that the High Court had passed a judgment on 7th April, 1997 in  

SBCW No. 3423 of 1995 titled Hiral Lal Joshi v. State directing  

that Review DPC be held with regard to vacancies for the year  

1993-94 to 1996-97 and then the appointments were made, however,  

averments  with  regard  to  supercession  of  Pooran  Singh  was

10 denied.  

Vide order dated 8th February, 1999, the appeal filed by Pooran  

Singh was set aside by the Tribunal, and the operative part of  

the judgment reads as under:

“In the light of the above discussion, Annexure-6  dated  8.7.1994  is  quashed  and  the  State  Government is directed to hold review DPC within  two  months  to  determine  yearwise  vacancies  afresh.   The  State  Government  has  already  indicated  yearwise vacancies  in page  2 of  its  reply.  The review DPC should be convened year  

wise and the promotion be done on the basis of  year wise vacancies only. Since the departmental  examinations  were  not  organized  by  State  Government  from  time  (sic)  and  then  that  provision was deleted therefore, no candidate for  any  particular  year  should  be  treated  to  be  unqualified  on  account  of  not  clearing  the  departmental  examination.   Ideally  the  notification  dated  13.4.1992  should  be  amended  retrospectively but even if it is not done so,  the  State  Government  cannot  circumscribe  or  dilute  the  provision  regarding  “year-wise”  filling up of vacancies.

In  the net  result this  appeal succeeds  and is

11 accepted.   The  State  Government  would  pay  the  cost  to  the  Appellant  which  is  determined  at  Rs.1000/-.”

    This order of the Tribunal dated 8th February, 1999 was  

challenged by the State Government before the High Court.  The  

High Court vide its order dated 18th July, 2005 passed in Civil  

Writ Petition No. 2111 of 1999, dismissed the Writ Petition and  

maintained the direction to the State Government to hold review  

DPC.  

Another  

writ  

petition  

was  also  

filed  by  

private  

persons  

being  

Writ  

Petition  

No. 1025 of 1999 which was also dismissed vide order dated 23rd  

July, 2008.  It may be noticed here that reversion of Pooran  

Singh-petitioner was stayed by an interim order. Later he sought  

voluntary retirement and retired.  However, appellant Jagdish  

Prasad  was  promoted  as  Assistant  Transport  Commissioner  vide  

order dated 24th January, 2003.

 Against  the  order  passed  by  the  learned  Single  Judge,  as  

afore-noticed,  the  appellant  preferred  an  appeal  before  the

12 Division Bench of that High Court.  All these appeals came to be  

dismissed by the Division Bench vide its order dated 17th April,  

2009, the relevant portion of which has already been reproduced  

above.

   The judgment of the Division Bench is impugned in the  

present appeal.  Before we proceed to discuss the contentions in  

relation to the factual matrix of the case, it will be useful to  

examine the scheme of the 1979 Rules.  The 1979 Rules had been  

notified  

vide  

notification of December, 1979.  In terms of Rule 2(e) of the  

1979  Rules,  ‘Direct  Recruitment’  means  recruitment  made  in  

accordance with Part IV of the 1979 Rules.  

Rule 2(k) of the 1979 Rules contemplates that ‘Service’ or  

‘Experience’, wherever prescribed in these Rules, as a condition  

for promotion from one service to another, or within the service  

from one category to another, or  to senior posts in the case of  

a person holding a lower post eligible for promotion to higher

13 post,  shall  include  the  period  for  which  the  person  has  

continuously  worked on such lower post after regular selection  

in accordance with Rules promulgated under proviso to Article  

309 of the Constitution of India.

Rule 7 of the 1979 Rules deals with Reservation of vacancies  

for  the  Scheduled  Castes  and  the  Scheduled  Tribes.   Such  

reservation has to be made in accordance with the orders of the  

Government  for  such  reservation  in  force  at  the  time  of  

recruitment  i.e.  by  direct  recruitment  and  by  promotion.  

Furthermore  Rule  7(4)  of  the  1979  Rules  requires  that  

appointments  shall  be  made  strictly  in  accordance  with  the  

rosters  prescribed  separately  for  direct  recruitment  and  

promotion.  In the event of non-availability of the eligible and  

suitable  candidates  amongst  the  Scheduled  Castes  and  the  

Scheduled Tribes, as the case may be, in a particular year, the  

vacancies so reserved for them shall be filled in accordance

14 with the normal procedure and an equivalent number of additional  

vacancies shall be reserved in the subsequent year.  Such of the  

vacancies which remain so unfilled shall be carried forward to  

the subsequent three recruitment years in total and thereafter  

such reservation would lapse, provided that there shall be no  

carry  forward  of  the  vacancies  in  the  post  or  

class/category/group of posts in any cadre of service to which  

promotions  are  made  on  the  basis  of  both  by  merit  and  by  

seniority-cum-merit under these Rules.

The proviso to Rule 7(4) of the 1979 Rules obviously restricts  

the application of carry forward.  How the vacancies are to be  

determined has been specified in Rule 10 of the 1979 Rules and  

the same reads as under:

“10.  “Determination  of  vacancies:-  (1)(a)  Subject to the provisions of these Rules, the  Appointing  Authority  shall  determine  on  1st  

April  every  year,  the  actual  number  of

15 vacancies occurring during the financial year.

(b)   Where  a  post  is  to  be  filled  in  by  a  single  method  as  prescribed  in  the  rule  or  Schedule, the vacancies so determined shall be  filled in by that method.

(c ) Where a post is to be filled in by more  than one method as prescribed in the rules or  Schedule,  the  apportionment  of  vacancies,  determined under clause (a) above, to each such  method shall be done maintaining the prescribed  proportion  for  the  overall  number  of  posts  already   filled  in.   If  any  fraction  of  vacancies is left over, after apportionment of  the vacancies in the manner prescribed above,  

the same shall be apportioned to the quota of  various  methods  prescribed  as  a  continuous  cyclic order giving precedence to the promotion  quota.

(2)  The  Appointing  Authority  shall  also  determine  the  vacancies  of  earlier  years,  yearwise which were required to be filled in by  promotion,  if  such  vacancies  were  not  determined and filled earlier in the year in  which they were required to be filled in.”

Procedure for Direct recruitment is dealt with in Part –IV  

of  the  1979  Rules,  which  requires  inviting  of  applications,

16 scrutiny  of  applications,  recommendations  of  the  Commission,  

disqualifications  for  appointment  and  selection  by  the  

Appointing Authority.

Part-V  of  the  1979  Rules  deals  with  ‘Procedure  for  

Recruitment by Promotion’ with which we are primarily concerned  

in the present case.

Rule 24 of the 1979 Rules provides Criteria, Eligibility  

and  

Procedure  

for  

Promotion  

to  

Junior,  

Senior  

and  other  

posts  

encadred  

in  the  

Service.  

It is not necessary for us to re-produce the entire Rule 24  

of the 1979 Rules.  It would suffice to refer to the relevant  

part of the said Rule 24 of the 1979 Rules which is as follows:

“24.  Criteria,  Eligibility  and  Procedure  for  Promotion  to  Junior,  Senior  and  other  posts  encadred  in  the   service:-  (1)  As  soon  as  the  Appointing  Authority  determines  the  number  of

17 vacancies under rule 10 and decides that a certain  number of posts are required to be filled in by  promotion, the Appointing Authority shall, subject  to provisions of sub-rule (9), prepare a correct  and complete list of the senior-most persons who  are eligible and qualified under these Rules for  promotion on the basis of seniority cum-merit or  on  the  basis  of  merit  to  the  class  of  posts  concerned.

(2)  The  persons  enumerated  in  Column  5  of  Schedule-1  shall  be  eligible  for  promotion  to  posts specified against them in Column 2 thereof  to the extent indicated in Column 3 subject to  their  possessing  minimum  qualifications  and  

experience on the first day of the month of April  of the year of selection as specified in Column 6.

XXX XXX XXX

(6)Selection for promotion to all other higher  posts or higher categories of posts in the Service  shall be made on the basis of merit and on the  basis on seniority-cum-merit in the proportion of  50:50.

Provided that if the Committee is satisfied that  suitable persons are not available for selection  by promotion strictly on the basis of merit in a  particular  year,  selection  by  promotion  on  the  basis of seniority-cum-merit may be made in the

18 same manner as specified in these Rules.

XXX XXX XXX

(11) If in any subsequent year, after promulgation  of these Rules, vacancies relating to any earlier  year  are  determined  under  sub-rule  (2)  of  rule  relating to determination of vacancies which were  required  to  be  filled  by  promotion,   the  Departmental Promotion Committee shall consider the  cases  of  all  such  persons  who  would  have  been  eligible in the year to which the vacancies relate  irrespective of the year in which the meeting of  the Departmental Promotion Committee is held and  such promotions shall be governed by the criteria  and procedure for promotion as was applicable in  

the particular year to which the vacancies relate  and the service/experience of an incumbent who has  been so promoted, for promotion to higher post for  any  period  during  which  he  has  not  actually  performed the duties of the post to which he would  have been promoted, shall be counted.  The pay of a  person who has been so promoted shall be re-fixed  at the pay which he would have derived at the time  of his promotion but no arrears of pay shall be  allowed to him.

(11A)  The  Government  or  the  Appointing  Authority  may order for the review of the proceedings of the  D.P.C. held earlier on account of some mistake or  error apparent on the face of record, or on account

19 of  a  factual  error  substantially  affecting  the  decision of the D.P.C. or for any other sufficient  reasons  e.g.  change  in  seniority,  wrong  determination  of  vacancies,  judgment/direction  of  any Court or Tribunal, or where adverse entries in  the  Confidential  Reports  of  an  individual  are  expunged or toned down or a punishment inflicted on  him is set aside or reduced.  The concurrence of  the  Department  of  Personnel  and  the  Commission  (where  Commission  is  associated)  shall  always  be  obtained before holding the meeting of the review  D.P.C.”

Schedule I of the 1979 Rules provided for Post, Sources of  

recruitment, Qualification for Direct recruitment and Post from  

which promotion is to be made.  Clause 4 of Schedule I of the  

1979 Rules deals with the Post of DTO which reads as under,  

after amendment:

S

.

N

o

N a m e O f   

S o u r c e s

Minimu

m  

qualif

icatio

n  for  

P o s t  f r o

Q ual ifi cat ion s  and  

Remarks

20 t h e p o s t

 o f   r e c r u i t m e n t   w i t h   p e r c e n t a g e

direct  

recrui

tment

m  w h i c h  p r o m o t i o n  

i s  t o  b e  m a d e

exp eri enc e  for  pro mot ion

4

.

D i s t r

5 0 %   b

Degree  in  Scienc e  Commer

M o t o r  

(i)Service  rendered  against  the  post of Sales  Tax Inspector

21 i c t   T r a n s p o r t   O f f i c e r

y   d i r e c t   r e c r u i t m e n t   a n d   5 0 %   b y   p r o m o t i o n

ce,  Arts  or  Engine ering  from a  recogn ized  Univer sity  establ ished  by law  in  India  

or  declar ed  equiva lent  theret o  by  the  Govern ment.

v e h i c l e  I n s p e c t o

r

(i)  5  yea rs’  exp eri enc e  in  the  pos t  men tio ned  

in  Col umn 5. + (ii )  Del ete d

or  Inspector  Excise  and  Taxation  prior  to  posting  in  the Transport  Department or  Motor Vehicle  Inspector  shall  count  in  computing  the period of  5  years’  service  as  Motor Vehicle  

Inspector. (ii)Till  directly  recruited  candidates  are  not  available  posts may be  filled  up  from  amongst  the Rajasthan  Administrativ e officers or  Officers  of  any  other

22 State Service  or  Rajasthan  Tehsildar  Service.

As it is evident prior to the amendment, the expression used in  

the Schedule was  “in addition to the above must have passed  

qualifying examination as prescribed in Schedule –II” This was  

notified to be deleted from the Rules vide Notification dated 13  

April, 1992.  Consequentially, Schedule II of the 1979 Rules was  

also  

amended  

and  the  

syllabus  

provided  

for  this  

qualifying  examination  was  deleted  in  its  entirety.   If  we  

analyse the above Rules in their correct perspective, it becomes  

evident  that  the  Rules  clearly  postulate  merit  to  be  the  

criterion for promotion to higher posts.  The vacancies have to  

be determined as per Rule 10 of the 1979 Rules, on the 1st April  

of every year.  If any fraction of vacancies is left over, after  

the apportionment of vacancies in the manner prescribed, the  

same shall be appointed through the quota of various methods

23 prescribed in continuous cyclic order, giving precedence to the  

promotion quota.  Appointing authority has to determine yearwise  

vacancies of earlier years, which were required to be filled in  

by promotion if such vacancies were not determined and filled  

earlier in the year they were required to be filled in, in the  

subsequent years.  In other words, the emphasis of the language  

of these rules is on yearly vacancies and they are required to  

be  filled  in  with  reference  to  each  particular  year.   The  

vacancies  

are  

required  

to  be  

determined and filled in as on 1st April of every year, for the  

vacancies occurring during the financial year, in terms of Rule  

10(1)(a).  Under Rule 7(1), the requisite vacancies are to be  

reserved for Scheduled Castes and Scheduled Tribes in accordance  

with  the  order  of  the  Government  in  force  at  the  time  of  

recruitment  that  is  by  direct  recruitment  or  by  promotion.  

These  vacancies  are  to  be  filled  by  seniority-cum-merit  and  

merit.   If  the  vacancies,  for  the  reasons  stated,  remained

24 unfilled they can be carried forward only for a limited period  

of  three  recruitment  years  in  total,  and  thereafter  such  

reservation  would  lapse,  in  terms  of  Rule  7(4)  of  the  1979  

Rules.

Another very important aspect of the Rules is that merit and  

seniority-cum-merit are the only relevant criteria for promotion  

to various posts.  The language of Rule 24(1) of the 1979 Rules  

does not allow for any ambiguity and clearly says that a list of  

senior  

most  

persons,  

who  are  

eligible  

and  

qualified  

under  the  

1979  

Rules,  

will  be  

prepared  and  from  that  list,  promotion  on  the  basis  of  

seniority-cum-merit or on the basis of merit to the concerned  

class of posts will be made.  Rule 24(6) of the 1979 Rules  

further  postulates  that  all  other  higher  posts  or  higher  

categories  of  posts  in  the  Service  shall  

be made on the basis of merit and on the basis on seniority-cum-

merit  in  the  proportion  of  50:50.   If  upon  merit  alone

25 candidates are not available then selection by promotion on the  

basis of seniority cum merit may be made in the same manner as  

is specified in the 1979 Rules.  On reading of Rule 24 (6),  

24(11) and 24 (11A) of the 1979 Rules conjointly, it is clear  

that promotions have to be made by the DPC by the criteria and  

procedure for promotion as applicable in that particular year,  

to  which  the  vacancies  relate.  The  service  experience  of  an  

incumbent  who  has  been  so  promoted,  for  promotion  to  higher  

posts  for  

any  

period  

during  

which  he  

has  not  

actually  

performed  

the  

duties  of  

the  post  

to which he would have been promoted, shall be counted.  It also  

requires that pay of a person who has been so promoted shall be  

re-fixed at the pay scale which he would have derived at the  

time of his promotion, but no arrears of pay shall be allowed to  

him.  The Government or the appointing authority has the power  

to order for the review of the proceedings of DPC held earlier  

on account of some mistake apparent on the face of the record or

26 on account of substantial error affecting the decision of the  

DPC  or  even  for  any  other  sufficient  reason  like  change  in  

seniority, wrong determination of vacancies etc.   

The  first  and  the  foremost  question  that  arises  for  

consideration by this Court is whether merely by the amendment  

to Schedule I and the deletion of Schedule II of the 1979 Rules  

the effect of the statutory provisions like Rules 6,10, 24 of  

the 1979 Rules read in their plain language would stand diluted.  

Can it be  

argued  

that  

amendment  

to  these  

schedules  

renders  

the  

statutory  

provisions ineffective and inoperative?

It is a settled principle of law that the Schedule of the 1979  

Rules has to be in conformity with, and is required to advance  

the object of the primary statutory provision.  Thus, a schedule  

cannot in any way wipe out the statutory provisions of the Act  

in effect and spirit.  It is nobody’s case, and in fact, nothing  

has been brought to our notice, that Rules 6, 10, 11 and 24 of  

the  1979  Rules  have  been  subjected  to  any  amendment  by  the

27 competent authority.  Once these provisions stand in the statute  

book, then respondents cannot escape from complying with them in  

the appropriate manner and without defeating the object of these  

Rules.  We have already discussed the scheme of the Act, which  

shows  that  the  services  of  the  Transport  Department  in  all  

relevant posts is covered under the provisions of the 1979 Rules  

and their purpose is to make promotions on merit or merit-cum-

seniority.   Their  prescribed  proportion  of  50:50  has  to  be  

maintained.  When Schedule 1 of the 1979 Rules is read along  

with the above indicated provisions, it is obvious that under  

Clause 4 of Schedule 1 of the 1979 Rules, 50% posts of DTO are  

to  be  filled  up  by  direct  recruitment  and  50%  posts  by  

promotion.  Now, the question is how the 50% promotions are to  

be filled up by the respondents.  Rule 24(6) of the 1979 Rules  

mandates that selection for promotion to all other higher posts  

or higher categories of posts in the Service shall be made on

28 the basis of merit and on the basis of seniority-cum-merit in  

the proportion of 50:50.  In other words, 50% vacancies are to  

be  filled  up  on  the  basis  of  merit  while  the  remaining  50%  

vacancies  in  the  promotion  quota  are  to  be  filled  up  by  

seniority-cum-merit.   The  persons  have  to  be  within  the  

appropriate position in the seniority list before they can be  

considered for promotion under the latter category.  Eligibility  

requirements have been specified under the 1979 Rules, which  

candidates must satisfy to be considered under the seniority-

cum-merit category.  The other persons who are to be promoted to  

the post of DTO are on the basis of merit alone.  Even if  

Schedule II of the 1979 Rules does not exist, it is obligatory  

on the part of the respondent to evolve a methodology to make  

promotions purely on merit.  Once the framers of the Rules have  

intended to provide merit as the sole criteria of promotion, the  

appointing  authority  is  not  vested  with  the  jurisdiction  to

29 waive the same or completely wipe out the same, on a flimsy  

excuse such as the one proposed in the present case.

In light of this, we now come to the conduct of the Government  

which we cannot but help to comment upon.  Right from 1983-84  

till  1993-94  no  examination  has  been  conducted  by  the  

appropriate authority despite the fact that they also issued  

notifications for holding exams on a few of these occasions.  If  

there  was  a  representation  from  the  Rajasthan  Transport  

Inspector’s Union, it cannot be considered as a sufficient cause  

or reason for not holding the examinations for more than ten  

years and causing serious prejudice to the candidates who might  

have been sufficiently meritorious to qualify in the exams and  

be  considered  for  promotion  to  50%  of  the  posts  under  the  

promotion quota.  It is a matter of regret that a Government can  

take such a stand before a Court of law and expects the Court to  

accept such a submission.  It is  ex facie untenable. Once the

30 rules stand clear, the Authority concerned is expected to act in  

accordance with law and not to defeat the law.  One who defeats  

the law by his unjustifiable and unsustainable acts is liable  

for the consequences of such default.  We fail to understand why  

the Government and its entire hierarchy had shut its eyes to  

this gross violation of statutory rules over such a long period.  

It is a matter of concern that any rule of good governance that  

an  obligation  is  imposed  upon  the  State  to  select  the  best  

candidates  to  higher  posts  and  not  to  frustrate  rules  which  

prescribe  merit  as  this  is  essential  to  the  process  of  

selection.   It is painful to note that the Government has put  

forward such a flimsy excuse for its inaction and unfortunately  

the same has weighed with the High Court to some extent, though  

it has dismissed the appeal of the State.  We have no hesitation  

in observing that the Government has no justification whatsoever  

in not holding the qualifying test for a long period of ten

31 years and this is a matter which the hierarchy of the State  

Government needs to examine and fix responsibility.

Even  after  1993-94,  the  process  of  selection  adopted  by  the  

State  Government  cannot  be  accepted.   The  preparation  of  

seniority list, method of selection and clubbing of vacancies  

are apparently in violation of the statutory Rules as afore-

noticed.  The Tribunal, in its judgment, has noticed Rule 24(ii)  

of  the  1979  Rules  and  observed  that  even  if  the  DPC  held  

together  

vacancies  

of  

several  

years,  

yet  the  

vacancy  

of  each  

year  

should  be  

determined and also filled up separately.  In this regard the  

reference was also made to the judgment of this Court in the  

case of Vinod Kumar Sangal v. Union of India [(1995) 4 SCC 246].  

We do approve of the observations made by the Tribunal that on  

the one hand the department has treated the rules as sacrosanct  

and on the other hand, right from introduction of the 1979 Rules  

not even a single examination was held.  The fallaciousness in  

the stand of the Government, to our mind, is clear from the fact

32 that the representations against the procedure started after 8  

to 9 years, but right from the first year i.e. from 1983, there  

can  be  no  justification  for  not  holding  the  examination  in  

accordance with the Rules.  It appears that the attempt was  

intended  to  suppress  the  rule  of  selection  by  merit.   The  

Tribunal  failed  to  notice  other  provisions  of  the  relevant  

rules.  While referring to the judgment of this Court in the  

case of  B.L. Gupta v.  M.C.D. [(1998) 9 SCC 223], it finally  

quashed  

the  order  

dated  8th  

July,  

1994  and  

issued  

direction  

to  hold  

review  

DPC  

within  

the specified time by filling yearwise vacancies.  One direction  

of  the  Tribunal,  as  is  appearing  from  its  order,  certainly  

cannot be sustained.  The Tribunal could not have directed that  

‘ideally  the  notification  dated  13.4.1992  should  be  amended  

retrospectively’.  It is not clear whether the Tribunal meant  

that  this  notification  should  be  given  effect  to  

retrospectively, in relation to the vacancies from of 1983-84,

33 or that the said notification itself should be amended.  This  

ambiguity was entirely uncalled for.

The  Division  Bench,  while  dealing  with  the  judgment  of  the  

learned Single Judge and the Tribunal, referred to the Rules to  

some extent and to the fact that for one vacancy, 5 eligible  

persons are required to be considered and for 2 vacancies, 8  

eligible persons should be considered; and that such proportion  

in accordance with the zone of consideration as specified under  

Rule  

24(6)  of  

the  1979  

Rules  

should  be  

maintained.  The High Court also referred to the judgment of  

this  Court  in  coming  to  the  conclusion  that  clubbing  of  

vacancies  was  not  proper,  and  that  such  a  course  could  be  

adopted only in the case of direct recruitment.  The High Court  

directed the making a completely fresh exercise and directed  

that  the  persons  already  promoted  were  not  be  demoted  but  

promotion  be  made  yearwise.   Though  for  somewhat  different  

reasons,  partially  accepting  the  findings  recorded  by  the

34 Tribunal, which we have discussed above, we would accept some of  

the  findings  of  the  Tribunal  and  the  High  Court;  but  the  

conclusions arrived at cannot be accepted in their entirety.  We  

are not only concerned with promotion or otherwise of any relief  

to the appellants or any persons in service but we must also  

ensure that Rules are implemented and selection is made strictly  

in accordance with such Rules.  We also cannot ignore the fact  

that a Government servant gets a right, (though not indefeasible  

right),  

to  be  

considered for promotion to the appropriate post to which he is  

eligible and entitled, in accordance with law.  In the case of  

Union of India and Another v.  Hemraj Singh Chauhan and others  

[(2010)  4  SCC  290]  this  Court  while  dealing  with  somewhat  

similar situation held as under:

“35. The Court must keep in mind the constitutional  obligation of both the appellants/Central Government  as  also  the  State  Government.  Both  the  Central  Government and the State Government are to act as

35 model employers, which is consistent with their role  in a welfare State.

36. It is an accepted legal position that the right  of eligible employees to be considered for promotion  is  virtually  a  part  of  their  fundamental  right  guaranteed under Article 16 of the Constitution. The  guarantee  of  a  fair  consideration  in  matters  of  promotion  under  Article  16  virtually  flows  from  guarantee  of  equality  under  Article  14  of  the  Constitution.”

      It  is  equally  true  that  the  rule  of  fairness  in  

Government  action  is  an  essential  feature.  However,  such  

fairness  

has to be  

founded  

on  

reasons.  

Usually,  

the  

providing  

of  

Reasons  

demonstrates  the  concept  of  reasonableness  but  where  the  

statutory rules provide the circumstances and criteria, ambit  

and  methods  by  which  the  selection  should  be  governed,  they  

would become the yardstick of fairness.  In the case of Manager  

Government Branch Press and Anr. v. D.B. Belliappa [(1979) 1 SCC  

477], this Court held that the essence of the guarantee under  

Articles 14 and 16 of the Constitution is ‘fairness founded on  

reasons’.

36 Having discussed in detail the infirmities and illegalities from  

which the selection process suffers, we, though for different  

reasons, have come to the same conclusion as the High Court  

while also issuing directions.  Therefore, while setting aside  

the selection/promotion order dated 8th July, 1994, we further  

issue the following directions for strict compliance by all the  

authorities concerned and without any further delay:

1. Fresh  process  of  selection  shall  be  held  by  the  

competent authority in accordance with Rules, as  

expeditiously  as  possible  and  in  any  case  not  

later than three months from today;

2. The  selection  by  promotion  for  the  yearwise  

vacancies  shall  be  filled  in  by  compliance  to  

Rule 24(6) of the 1979 Rules.  The authorities

37 shall fill 50% of the promotion vacancies purely  

by merit, for which it will evolve a methodology,  

either by holding a qualifying examination as was  

being conducted prior to 1992, or by any other  

examination  which  would  satisfy  the  basic  

criteria of selection by merit.

3. Remaining 50% of the promotion posts shall be filled  

by seniority-cum-merit for which the departmental  

DPC  shall  meet  within  the  stipulated  time  as  

afore-directed.

4. The Secretary (Transport), Government of Rajasthan  

is  hereby  directed  to  conduct  an  enquiry  

personally  and  fix  responsibility  on  all  the  

officers/officials responsible for not conducting  

qualifying examination in accordance with Rules  

from  1983  to  1994  and  subsequent  thereto  in

38 accordance  with  law.   In  other  words,  the  

officers  must  be  held  responsible  for  their  

lapses and be punished in accordance with law.

5. The vacancies would be clubbed only for the purposes  

of calculating an arithmetical figure but, will  

be filled in accordance with yearwise vacancies  

and  considering  the  officers  eligible  for  

promotion to the post of DTO in accordance with  

seniority cum merit rule for 50% of the promotion  

post.

6. All remaining 50% posts shall be filled up purely on  

merit and by holding an examination.

7. The persons who have already been promoted would not  

be reverted and none of them would be entitled to  

claim  any  financial  benefits,  if  they  have  

already retired from the post of DTO.

39 8. The candidates now selected in furtherance to the  

directions contained in the judgment shall not be  

entitled to any arrears of pay because though their  

promotion may be relatable to a previous year, such  

promotion  shall  be  notional  without  any  

consequential benefits.

The appeals are partially accepted and are disposed of,  

with no order as to costs, with the directions afore-indicated.  

All  the  

authorities concerned shall comply with these directions without  

default and submit their compliance report to the Registry of  

the High Court within 16 weeks from today.

.....................................J.                  [Dr. B.S. Chauhan]

.....................................J.

40        [Swatanter Kumar]

New Delhi; July 7, 2011